국제적 증권거래의 준거법 결정원칙에 대한 고찰

Despite the changes in securities holding in the global market, conventional way of approach on applicable law based on direct holding of securities still exists and tends to apply to the today's indirect holding system. Against this backdrop, a number of legal uncertainties emerged in such areas as the substantial laws and conflict of laws. Particularly, a decision on the applicable law usually becomes an issue in relation to transactions of indirectly held securities. Following is the results of an analysis. First of all, a decision on the applicable law differs depending on two distinct principles in viewing investor's right over indirectly held securities. One is the look-through principle whereby the investor's right is viewed as a property right that is legally traceable to individual securities, while the other is the no-look through principle that views the investor's right as property right against financial intermediaries. A decision on the applicable law based on the look-through principle has several problems in that the principle causes inconvenience by making it compulsory for the mortgagee to satisfy all of the requirements for collaterals in a multiple jurisdictions for each collateral security as well as renewed requirements resulting from any increase or change of collateral by granter of a security right; it has to be identified in advance whether a country of jurisdiction has adopted Lex Rei Sitae, the law of the place of the register, or Lex Incorporationis; and it is practically difficult to locate a particular security certificate in the many central securities depositories in the world. Therefore, this type of principle may not be easily adopted under the current situation surrounding securities transactions and custody. By the same token, the no-look-through principle comes as more desirable method. Even a legal system adopts the no-look-through principle, the cases of the UCC Article 8 or the Choice of Law Rule of the Hague Securities Convention, which determines applicable laws through agreements among related parties, appear preferable in light of current practical and theoretical aspects to the cases of Securities Finality Directive of EU which rely on PRIMA. Considering the purport of Hague Securities Convention and the current movements of financially advanced countries toward signing up to the Convention, it appears inevitable that Korea joins the Convention. If we join the Hague Securities Convention, however, that will significantly change the principle of applicable law decision which is based on Lex Situs, exposing securities transactions in domestic market under the governance of foreign laws. That will create various problems and will also damage legal integrity and stability of securities transactions in the domestic market. Therefore, it is imperative that we identify all the possible legal problems in advance and improve legal provisions to meet the needs so that we can keep the problems under control.